The fate of tens of thousands of immigrants’ court cases could rest in the hands of Attorney General Jeff Sessions.
That’s not a metaphor. Sessions has stepped into the immigration system in an unprecedented manner: giving himself and his office the ability to review, and rewrite, cases that could set precedents for a large share of the hundreds of thousands of immigrants with pending immigration-court cases, not to mention all those who are arrested and put into the deportation process in future.
He’s doing this by taking cases from the Board of Immigration Appeals — the Department of Justice agency that serves as a quasi-appellate body for immigration court cases — and referring them to himself to issue a decision instead.
Sessions isn’t giving lawyers much information about what he’s planning. But he’s set himself up, if he wants, to make it radically harder for immigration judges to push cases off their docket to be resolved elsewhere or paused indefinitely — and to close the best opportunity that tens of thousands of asylum seekers, including most Central Americans, have to stay in the United States. And he might be gearing up to extend his involvement even further — by giving himself the authority to review a much bigger swath of rulings issued in the immigration-court system.
The attorney general has the power to set immigration precedents. But attorneys general rarely used that power — until now.
Most immigrants who are apprehended in the US without papers have a right to a hearing in immigration court to determine whether they can be deported and whether they qualify for some form of legal status or other relief from deportation. The same process exists for people who are caught crossing into the US but who claim to be eligible for some sort of relief, like asylum, and pass an initial screening. In both cases, only after the judge issues a final order of removal can the immigrant be deported.
Immigration courts aren’t part of the judicial branch; they’re under the authority of the Department of Justice. Their judges are supposed to have some degree of independence, and some judges are certainly harsher on immigrants and asylum-seekers than others. But their decisions are guided by precedent from the Board of Immigration Appeals, which is basically the appellate court of the immigration system, and which also answers to the DOJ and the attorney general.
If the attorney general doesn’t like that precedent, he has the power to change it — by referring a case to himself after the Board of Immigration Appeals has reviewed it, issuing a new ruling, and telling the immigration courts to abide by the precedent that ruling sets in future.
Attorneys general rarely ever use that power. Sessions has used it three times since the beginning of 2018; all three cases are still under review. “I can’t remember this many decisions being certified in the past five to 10 years,” says Kate Voigt of the American Immigration Lawyers Association.
In theory, Sessions’s office is supposed to make its decision based on amicus briefs from outside parties, as well as the immigrant’s lawyer and the Immigration and Customs Enforcement (ICE) prosecutor. But advocates and lawyers’ groups say they can’t file a good brief if they don’t know what, exactly, the cases Sessions is getting involved in actually are — and Sessions is withholding that information.
In one of the cases Sessions has referred to himself, the DOJ refused to provide a copy of the decision that Sessions is reviewing or any information about where the case came from and who the immigrant’s lawyer was. In another case, congressional staff happened to find the decision under review on a DOJ website days before the deadline for amicus briefs.
That opacity makes it basically impossible to know whether Sessions is planning to issue relatively narrow rulings or very broad ones. In the case in which the decision under review was discovered by congressional staffers, both the immigrant’s lawyer and the Department of Homeland Security (serving as the prosecution) asked Sessions’s office to clarify the specific legal question at hand in the review — in other words, to give them a hint of the scope of the potential precedent being set. They were denied.
“We have no idea how broad he’s going,” said Eleanor Acer of the advocacy group Human Rights First. “The way it was framed was totally inscrutable.”
Sessions’s self-referrals could affect a large portion of immigration court cases
To Acer and other lawyers and advocates, that uncertainty is worrisome. All three of the cases Sessions has referred to himself center on questions that, depending on how they’re answered, could result in rulings that tip the balance of tens of thousands of immigration court cases.
Can judges remove cases from the docket? In the case Sessions referred to himself in January, Matter of Castro-Tum, he asked the question of whether judges are allowed to use something called “administrative closure” — to remove a case from the docket, essentially hitting the pause button on it indefinitely.
Administrative closures were common under the Obama administration, as ICE prosecutors used it to stop the deportation process for “low-priority” unauthorized immigrants. They’re already much less common under Trump — a Reuters analysis found that closures dropped from 56,000 in Obama’s last year in office to 20,000 in Trump’s first year — but that’s still 20,000 immigrants whose deportation cases were halted, and 20,000 cases cleared out of an ever-growing immigration court backlog.
If it’s written broadly enough, the forthcoming Sessions decision could prevent administrative closure from being even a possibility.
Are victims of “private violence” eligible for asylum? In a March self-referral, Sessions asked whether a judge should be allowed to grant asylum to a domestic-violence survivor because she was a victim of “private violence” — violence that wasn’t state-based. Theoretically, asylum is supposed to be available only for victims of certain types of persecution, but some judges have found that women in some countries who experience domestic violence are being persecuted for membership in the “social group” of being women.
The self-referral has raised red flags for a lot of domestic-violence groups, who are worried that Sessions is about to cut off an important path to relief for some immigrant survivors. But it could be even broader — gang violence is also “private” violence, and the “social group” clause has also been used to give asylum to people fleeing gang violence in Honduras and El Salvador.
“There is no dispute under US law that asylum claims may be based on persecution conducted by non-governmental actors,” Human Rights First’s Acer told Vox, as long as the asylum-seeker shows her government was unwilling or unable to protect her. But Sessions appears to be “directly attacking, essentially, whether a nonstate actor” can ever qualify as a persecutor.
For many of the thousands of Central Americans who’ve entered the US in recent years, that provision has been their best chance to stay here rather than being sent home. And it could be taken away with a stroke of Sessions’s pen.
Can an immigration judge wait for an application to be approved? In his other March self-referral, Sessions appears to be taking aim at “continuances” — a practice of judges kicking the can down the road in a case by scheduling it for the next available court date some time in the future (often several months) in order for something else to be prepared or resolved.
Sometimes, continuances are requested because the immigrant in question is also involved in another legal proceeding that’s relevant to the case. One example: An immigrant put into deportation proceedings by ICE, in an immigration court run by the DOJ, may still be eligible to apply for legal status from US Citizenship and Immigration Services while waiting for their application to be processed. Sessions is now asking himself whether it’s legally valid to grant a continuance so the parallel legal proceeding can get resolved.
This could affect tens of thousands of cases. A 2012 DOJ Office of the Inspector General report found that more than half of cases examined involved continuances — and one-quarter of all continuances involved requests from the immigrant to delay a case while an application was filed or processed (or a background check was completed).
Lawyers’ concern that Sessions is gearing up to issue a broad ruling in this case was amplified at the end of April, when a DOJ notification in the case mentioned 2 other immigrants whose cases were being combined with this one — indicating to some lawyers that the facts in the original case didn’t lend themselves to the ruling Sessions had already decided to give.
Furthermore, lawyers and advocates worry that Sessions is gearing up to restrict continuances in other circumstances — like allowing immigrants time to find a lawyer or prepare a case.
Sessions’s meddling might not make courts more efficient, but it will make them more brutal
Sessions and the Trump administration claim they’re trying to restore efficiency to a backlogged court system that poses the biggest obstacle to the large-scale swift deportation of border-crossing families and to unauthorized immigrants living in the US. But lawyers are convinced that Sessions’s diktats, if they’re as broad as feared, would just gum up the works further.
“If the attorney general were seriously concerned about the backlog, as opposed to a desire for quick deportations, he would be focused on transferring as many cases away from” immigration judges as possible, attorney Jeremy McKinney told Vox — not forcing them to keep cases on their docket that they would rather close, or that could be rendered moot by other decisions. It’s “not smart docket control.”
And Sessions isn’t simply planning to issue these rulings and walk away. His office is planning to give itself even wider power over the immigration-court system. A notice published as part of the department’s spring 2018 regulatory agenda says: “The Department of Justice (DOJ) proposes to change the circumstances in which the Attorney General may refer cases to himself for review. Such case types will include those pending before the Board of Immigration Appeals (BIA) but not yet decided and certain immigration judge decisions regardless of whether those decisions have been appealed to the BIA.”
In other words, even when a DOJ judge makes a ruling in an immigrant’s favor and ICE prosecutors don’t try to appeal the ruling, the attorney general’s office could sweep in and overrule the judge.
Sessions’s decrees would probably result in more immigration-judge decisions getting appealed to the Board of Immigration Appeals (further gumming up the works) as judges try to interpret precedents Sessions has set, and from there to federal courts of appeals. Many federal judges aren’t keen on the immigration-court system, especially when its appeals gum up their own dockets, and they might step in to push back against Sessions’ changes.
In the meantime, though, immigration judges will have fewer ways to move cases off their docket, and fewer avenues for asylum-seekers to qualify for relief, at the same time as they’re facing serious pressure to make quick decisions in as many cases as possible. The more pressure is put on immigration judges from above, and the more Sessions moves to block their safety valves, the less likely they are to give immigrants a chance to fully make their cases before they bang the gavel on their deportations.